The video posted by YouTube users appears to show model Daniela
Cicarelli having sex in the sea with boyfriend Tony Malzoni. The
couple sued to have the video taken down. YouTube complied, but
users re-posted the video. Cicarelli and Malzoni sued again and
Reuters reports that on Wednesday a Brazilian court granted their
request for an order to shut down the world's most popular
video-sharing site for as long as the video is available to users,
according to Reuters. Google has not commented on the ruling.
YouTube is hosted in and operated from the US, not Brazil,
though Google does have an office in Sao Paulo, which could become
a target for enforcement action if the court ruling is ignored.
Under US law, while Google and other content hosts have duties to
react to certain types of complaint, there is no general duty to
check material before it is uploaded by users.
The highest profile case to date on jurisdictional issues in
such cases started in 2000 when two civil liberties groups won a
court order from a Paris court requiring Yahoo! to block internet
users in France from accessing its US auction sites selling Nazi
memorabilia.
Yahoo! did not appeal the ruling in France. Instead, it sought a
declaration from a California court. It claimed that the order to
ban French users from accessing certain auction sites affected the
operations of its US servers, and was therefore unenforceable under
the First Amendment provisions on free speech. On 12th January
2006, the case was decided by an 11-judge panel of the 9th US
Circuit Court of Appeals. But it was decided without a definitive
response to Yahoo!'s free speech arguments, in part because it was
deemed unlikely that any penalty could ever be enforced against
Yahoo! in the US. Five dissenting judges said that the free speech
arguments should have been considered.
Yahoo! interpreted the ruling as saying that free speech rights
would prevail if the French court orders were attempted to be
enforced in the US. An opportunity for closure was missed when, in
May 2006, the Supreme Court refused to consider the case. It gave
no reasons for its decision.
